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VIC Sue Real Estate Agent for Misleading Conduct?

Discussion in 'Property Law Forum' started by Bob456, 7 June 2016.

  1. Bob456

    Bob456 Member

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    On behalf of my friends, I am looking for an experienced lawyer who had successfully sued real estate agents base on equity law before, because of the agent's misleading or misconduct.

    My friends, they had been misled by an agent to sign a property purchase agreement after the pass-in of an auction. After they read the signed agreement, they realized they do not have "3-days cooling off period", they have been misled and wanted to cancel the agreement. They did not pay any deposit and sent notice of cancellation to the agent the second da, but the agent refused to cancel the agreement. They did not settle the property. The agent re-sold the property at lower price after the settlement data. Now the vendor sued my friends and asking them to pay a big sum of money which is the difference of 2 sold prices plus other costs.

    Now they need to sue the agent and ask the agent to pay whatever the vendor asked and to prove the agreement they had was invalid because they believe they have been misled by the agent's deceptive conducted. They did not buy, was not provided section 32 before auction, and wasn't given enough time to read the agreement before they signing. The agent misled they to believe they would have "3 days cooling off period".

    English is not their first language and they were not familiar with Australian auction, etc. They can provide more details to the lawyer late on.

    It would be much appreciated.
     
  2. Michael T

    Michael T Well-Known Member

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    Sounds like an uphill battle to prove the real estate agent did the wrong thing. Make sure all emails, documents are collated and a timeline of what was said and when is created.
    See Find a Lawyer in Australia | LawAnswers.com.au for a lawyer.
     
  3. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Bob456

    I can assist your friends., and will send you a request to connect directly with you to discuss the matter further.

    Can you please advise (the exact date) your friends were personally served with the claim by the vendor?

    Firstly, the most urgent priority is to prepare and lodge a Defence to the Vendor's claim with the Court - failure to do so within 28 days of being served, could open your friends up to the possibility of having a default judgement entered against them.

    Secondly, I recommend that your friends attempt (with my assistance) to negotiate a settlement with the Vendor/ and the Agent.

    Thirdly, if the Vendor/Agent refuse to settle, your friends avenue of least cost and risk (directly against) the Agent might be able to apply to stay (stop) the Court proceedings, in order to make an application to VCAT (Victorian Civil and Administrative Tribunal) rather than to proceed to argue the matter of the Agent's misleading and deceptive conduct before the Court.

    VCAT Application Types

    Anyone including traders, companies, businesses, consumers and individuals can apply to VCAT to resolve a dispute with a supplier or purchaser of goods and services.

    Some of the VCAT Application Types made in the VCAT Civil Claims list include:
    • Contract to purchase, sell or rent real estate;
    • Misleading or deceptive conduct, false representation and unconscionable conduct;
    • Loss, injury or damage because of a contravention of the Fair Trading Act 1999 or the Australian Consumer Law and Fair Trading Act 2012;
    • Claims against professionals (including doctors, lawyers and real estate agents)...
    Any or all of the above selected VCAT Application Types could apply to the facts of the matter as described above...

    Kind regards,
     
  4. Bob456

    Bob456 Member

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    Hi James, thank you for your comments. I will pass it to my friends. Anyone has more ideas?
     
  5. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Bob456

    Correction - In Victoria, the Defence needs to be filed and served on the Plaintiff within 21 days (I had quoted above = the time limit applicable in Qld of 28 days).

    Kind regards,
     
  6. Yevgeni

    Yevgeni Well-Known Member

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    Hi Bob,

    I am acting for a client at the moment in a claim arising out of similar circumstances, it does sound more of an unconscionable conduct claim, on the part of the agent and I say this, because in my experience unconscionable conduct matters that we have dealt with include, inter alia:

    1. Not properly explaining the conditions of contract to someone you know does no speak English or has a learning disability,

    2. Not allowing enough time to read an agreement, ask questions or get advice.

    3. Failing to disclose key contractual terms.

    4. Using high‐pressure tactics, such as refusing to take ‘no’ for an answer.

    On the other hand, misleading and deceptive conduct is something that creates an overall misleading impression about, for example, the price, value or quality of your goods or services.

    In my opinion, your friends' case falls more into an unconscionable conduct category.

    Having said that, there are a number of different ways to go about it and to properly help you, I would require more information from you and your friends.

    Just don't panic, yet!

    Cheers,
     
  7. Bob456

    Bob456 Member

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    Thank you so much, James.
     

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